AKINOSUN v. COP, KWARA STATE & ORS (2020)

AKINOSUN v. COP, KWARA STATE & ORS

(2020)LCN/14097(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Monday, March 02, 2020

CA/IL/118/2018

Before Our Lordships:

Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

FOLARANMI AKINOSUN APPELANT(S)

And

COMMISSIONER OF POLICE, KWARA STATE 2. DSP KABIRU A WADA 3. INSPECTOR KEHINDE OGUNLADE 4. SULAIMAN KAZEEM BOLANTA RESPONDENT(S)

RATIO

BREACH OF FUNDAMENTAL HUMAN RIGHTS

It is trite that the gravamen of the Appellant’s grouse is predicated upon the breach of the fundamental rights thereof. By virtue of the provisions of Section 46 of the Constitution of the Federal Republic of Nigeria, 1999 as amended:
“Any person who alleges that any of the provisions of this Chapter has been is being or likely to be contravened in any state in relation to him may apply to a High Court in that State for redress.” By virtue of the provisions of Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, the term fundamental and human right denotes:
“Any of the rights provided for in Chapter IV of the Constitution and includes any of the rights stipulated in the African Charter on Human and People’s Rights (Ratification and Enforcement) Act.”
See OSONDU VS. AG ENUGU STATE (2017) LPELR – CA/E/25/2016. PER SAULAWA, J.C.A.

SUCCEEDING IN A CLAIM FOR DAMAGES.

Indeed, it is a fundamental principle, that in any claim for damages, a plaintiff must succeed in establishing the claim vis-a-vis the relief thereof. Thus, where a plaintiff woefully fails to prove the claim thereof with some credible evidence, the relief for damages must naturally fail: IITA VS. AMRANI (1994) 3 NWLR (Pt. 332) 296 @ 325 Paragraph C – D.” Per Saulawa, JCA @ 2154. PER SAULAWA, J.C.A.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is against the judgment of the Kwara State High Court delivered on May 9, 2018 in Suit No. KWS/59M/2017. By the said judgment, the Court below deemed it expedient to dismiss the Appellant’s application seeking an order enforcing the fundamental rights thereof against the Respondents.

BACKGROUND FACTS
Consequent upon an online advertorial by the Appellant to the effect that he run an affiliated University in Ghana named Delta University Ghana, with a Campus established at Moro, Ile-Ife, Osun State, the 4th Respondent applied and was admitted to the said University by the Appellant. However, while the 4th Respondent was at 400 Level, the Appellant’s University was published and confirmed to be fake. This led to the visitations and subsequent publication of the fake University to the general public by the Nigerian Television Authority (NTA) Osun State Division.

Upon hearing the said news, the students of the University protested, thereby resulting in the staff being asked to vacate the University Campus for security reasons. They were not

recalled till date. However, the staff were later to be employed by Kinsey College of Education, Ilorin, Kwara State and they moved on with their lives.

Consequent where upon, the Appellant wrote several petitions against the Kinsey College of Education. The Appellant was invited by the 1st – 3rd Respondents. The 4th Respondent was equally invited to confirm his position and the genuineness or otherwise of the Appellant’s University. The 1st – 3rd Respondents having found that the Appellant operated the purported University illegally, arraigned him before a Chief Magistrate’s Court, Ilorin.

Not unnaturally, the Appellant opted to seek redress against the Respondents.

The Suit in question was instituted by the Appellant on March 29, 2017 in the Court below, thereby seeking declaration and injunctive reliefs against the Respondents, jointly and severally:
1. A DECLARATION that the detentions of the applicant at the State Intelligence Bureau (SIB) in the command of the 1st respondent by the 2nd and 3rd respondents on Thursday, 14th January, 2016 and Tuesday, 12th April, 2016 constitute a violation of the applicant’s

right to dignity of human person, right to personal liberty and right to freedom of movement contrary to the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the African Charter on Human and Peoples’ rights.
2. A DECLARATION that the arraignment of the applicant at the Chief Magistrate Court, Ilorin for alleged offences allegedly committed in Osun State and the applicant’s subsequent remand in Oke Kura Prison Custody for a whole one month upon the request and insistence of the 3rd respondent constitute a breach of the applicant’s rights to dignity of human person, personal liberty, freedom of movement as provided for under the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the African Charter on Human and Peoples’ rights.
3. AN ORDER of this Honourable Court restraining the respondents, their agents, officers, representatives, or privies severally and jointly from arresting or re-arresting or causing the arrest or the re-arrest, detaining or re-detaining the applicant or any of the applicant’s employees, servants, representatives, agents whether in the applicant’s personal employment or

in the employment of any of the applicant’s schools in connection to the contractual relationship between any of the applicant’s schools and the 4th respondent, one Aderinsola Olarewaju Bode and any other student that dropped out from any of the applicant’s schools on one hand and any absconded member of staff of any applicant’s schools on the other hand.
4. Exemplary damages of N100,000.000.00 (One Hundred Million Naira) only against the respondents for the assault, illegal instigation of the process of Court against the applicant and unlawful or illegal detention of the applicant.
5. Unreserved apology in writing in at least two (2) National Newspapers to the applicant by the respondents for the breach of the applicant’s fundamental human rights.

The application was brought pursuant to Order II Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009.
Contrariwise, the 1st – 3rd Respondents filed a counter-affidavit on June 2, 2017 in reaction to the said application. The Appellant filed a further affidavit on July 20, 2017 and Reply on points of law in support of the application.

On February 15, 2018, the

parties adopted the respective Written Addresses thereof, thus resulting in adjourning judgment to March 14, 2018. Eventually, the vexed judgment was delivered by the Court below on the said May 9, 2018 to the conclusive effect that the Appellant’s fundamental human rights were not breached, and that the detention of the Appellant at Oke-Kura Prison Custody, Ilorin by the Magistrate’s Court was not done out of malice. Thus, the Court below accordingly dismissed the Appellant’s Suit.

On December 3, 2019 when the appeal came up for hearing, the learned counsel adopted their respective briefs of argument, thus resulting in reserving the judgment. Most particularly, the Appellant’s brief, filed on 19/11/2018, spans a total of 23 pages. At page 8 thereof, two Issues have been couched:
1. Whether the appellant has proved the breach of his fundamental human rights by the Respondents? (Grounds 1, 3, 5, 6, 7, 8, 9, 10)
2. Whether the appellant is entitled to compensation for such a breach? (Ground 2).

The Appellant’s learned counsel has deemed it expedient to argue both issues together under paragraphs 4.02 – 4.36

(pages 8 – 21) of the brief. In the main, it is submitted that the provisions of Section 115(2) of the Evidence Act, 2011 are mandatory and any failure to comply with same, the offending paragraphs of the affidavit must be struck out. See MILITARY GOVERNOR OF LAGOS STATE VS. OJUKWU (1986) ANLR 233 @ 250; HALIRU VS. FRN (2008) ALL FWLR (Pt. 425) 1697 @ 1717 – 1719 CA, et al.

Further submitted, that paragraphs 1 – 12, 14 – 68 of the Appellant’s Further Affidavit are neither legal argument nor conclusions, therefore, do not offend Section 115(2) of the Evidence Act, 2011.

It was argued that Exhibits M – M10 (Pages 250 – 262 of the Record) are not public documents, therefore they do not need any certification in compliance with Sections 86(2) and (4) of the Evidence Act, 2011. Thus, the Court below erred in law where it held that Exhibits M – M10 needed certification for them to be admissible.

Further argued, that the reference to the Appellant’s Further Affidavit as offensive has occasioned a miscarriage of justice to the Appellant. See Section 104(1) of the Evidence Act, 2011; ADEKOLA VS.AILARA (2011) ALL FWLR (Pt. 572) 1696 @ 173.

It was posited, that the Court below erred in law when it held that the Appellant’s affidavit evidence in support of the application could not sustain the application, when there are sufficient facts in the said affidavits to grant the application. Allegedly, failure to evaluate the evidence of the Appellant led to miscarriage of justice. SeeEJOR VS. WILCOX (2003) 13 NWLR (Pt. 838) 488 @ 510 paragraphs C – D.

According to the learned counsel, the facts deposed to in paragraphs 7, 8, 9, 13, 52, 71, 84 and 88 of the Further Affidavit were uncontroverted, unchallenged or uncontested and admitted by the Respondents, therefore, they need no further proof. See AGBANELO VS. UBN (2000) 7 NWLR (Pt. 666) 534 @ 556 et al.

The Appellant’s learned counsel vehemently posited, that the vexed judgment of the Court below is against the weight of evidence. That the Appellant is entitled to his dignity of human person, personal liberty and freedom of movement as guaranteed by Sections 34, 35 and 41 of the 1999, Constitution, Articles 6 and 12(1) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, CAP. A9 Laws of the Federation of Nigeria, 2004.

See FRN VS. IFEGWU (2003) 15 NWLR (Pt. 842) 113, 185 paragraph B; ONYIRIOHA VS. IGP (2009) 3 NWLR (Pt. 1128) 342, 375 paragraphs G – H; FEDERAL MINISTRY OF INTERNAL AFFAIRS VS. SHUGABA DARMAN (1982) 3 NCLR 915 et al.

With particular regard to the issue of damages, it is argued that the detention of the Appellant was unlawful, therefore giving him the right to compensation and an apology. See OKONKWO VS. OGBOGU (1996) 7 NWLR (Pt. 580); FEDERAL CIVIL SERVICE COMMISSION VS. LAOYE (1989) 2 NWLR (Pt. 106) 652 @ 702 paragraphs D – F.

Conclusively, the Court is urged upon to allow the appeal.

Contrariwise, the 1st – 3rd Respondents’ brief, deemed filed on 21/10/2019, spans a total of 21 pages. The Appellant’s two Issues have been adopted and argued at pages 7 – 20 of the 1st – 3rd Respondents’ brief.

In a nutshell, it is submitted, that the striking out of the offending paragraphs of the Appellant did not occasion a miscarriage of justice. The reason being that notwithstanding the striking of the offending paragraphs

of the affidavits in question, the Court below rightly considered the whole paragraphs of the further affidavit before delivering the judgment. See pages 368, 403 – 408 of the Record.

It was argued, that Exhibits M – M10 (Attached to the further affidavit) were public documents, contrary to the Appellant’s submission. That assuming without conceding that Exhibits M – M10 were (not) public documents, it’s further argued that those Exhibits were not made in the language of the Court as rightly stated by the Court below at page 381 of the Record.

It was therefore posited, that the finding of the Court below was neither perverse nor occasioned a miscarriage of justice. That, the Court below did not pick and choose the evidence in the instant case. And that the Court duly considered Exhibit U and all the other Exhibits attached by the Appellant before arriving at the vexed judgment. See page 388 lines 10 – 13 of the Record. Therefore, the case of EJOH VS. WILCOX (Supra), and all other cases cited by the Appellant are not applicable to the instant case.

Further argued, that the fundamental right of the Appellant had

never been breached by the 1st – 3rd Respondents. As such, the judgment of the Court below is not against the weight of evidence, contrary to the Appellant’s submission.

The Court is urged to so hold.

In regard to the issue on damages, it is submitted, that contrary to the Appellant’s argument, the Court should not award damages as the 1st – 3rd Respondents only carried out their constitutional duties against the Appellant. See OLATINWO VS. THE STATE (2013) 8 NWLR (Pt. 1335) 126; GANI FAWEHINMI VS. IGP (2002) 8 SCM 77 @ 79, et al.

Further submitted, that the 1st – 3rd Respondents neither unlawfully arrested, detained nor injured the Appellant. Thus, the Appellant is not entitled to damages or any apology from the 1st – 3rd Respondents. See FEDERAL MINISTRY OF INTERNAL AFFAIRS VS. SHUGABA DARMAN (Supra), et al.

Conclusively, the Court is urged to dismiss the appeal.

The Appellant’s reply brief to the 1st – 3rd Respondents’ brief was filed on 30/10/2019. By the said reply brief, the Appellant argued that the Court is urged to hold that the facts as presented by the 1st – 3rd

Respondents in their brief are untrue, misleading and unreliable. The Appellant conclusively urged upon the Court to allow the appeal, and set aside the vexed decision of the Court below.

On the part thereof, the 4th Respondent filed a brief on 09/10/2019. The said brief spans a total of 6 pages. By the said brief thereof, the 4th Respondent has conclusively urged upon the Court to resolve the two Issues in favour of the Appellant and accordingly set aside the vexed decision of the Court below.

I have had the privilege of according a critical albeit dispassionate consideration upon the nature and circumstances surrounding the instant appeal, the argument of the learned counsel contained in the respective briefs of argument thereof vis-à-vis the record of appeal, as a whole. Thus, I am of the paramount view that the two Issues raised and canvassed by the parties in the respective briefs thereof are very much germane to the Appellant’s grounds of the Notice of Appeal. The two Issues in question are thus hereby adopted by me for the ultimate determination of the appeal.

ISSUE NO. 1
The first Issue mutatis mutandi, raises the very

vexed question of whether or not the Court below was right in holding that the Appellant had not proved the breach of his fundamental human rights by the Respondents. The first Issue is distilled from Grounds 1, 3, 4, 5, 6, 7, 8, 9 and 10 of the Notice of Appeal.

By virtue of the provisions of Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, the term fundamental and human right denotes:
“Any of the rights provided for in Chapter IV of the Constitution and includes any of the rights stipulated in the African Charter on Human and People’s Rights (Ratification and Enforcement) Act.”
See OSONDU VS. AG ENUGU STATE (2017) LPELR – CA/E/25/2016.

The vexed judgment of

the Court below is contained at pages 317 – 414 of the record thereby spanning a total of 99 pages. From the outset of the argument thereof, the Appellant’s learned counsel has submitted under paragraph 4.06 page 9 of the brief thereof that a total of 80 paragraphs of the Appellant’s Further Affidavit in support of the application (pages 233 – 249 of the Record Appeal) were struck out by the Court below inspite of the fact that the said paragraphs are neither legal argument nor conclusions. Thus, the said paragraphs are not offensive to the provisions of Section 115(2) of the Evidence Act, 2011.
Specifically, at page 376 of the record, the Court below alluded to the 80 paragraphs of the Further Affidavit in question to the effect thus:
“In some cases (they are) pure conclusions or conclusions and arguments rolled together in another respect which clearly is a style forbidden in any given Affidavit by the clear express and mandatory provision of the Evidence Act reproduced above.
In the light of foregoing, the objectionable paragraphs highlighted above are hereby struck out from the Further Affidavit.”

However, notwithstanding the striking out of the paragraphs of the Further Affidavit in question, the Court below magnanimously also held at page 388 of record:
In this matter, I religiously pondered over the depositions of the Applicant in his main Affidavit of 66 paragraphs and in the interest of justice not minding the offensive depositions in the 88 paragraphs Further Affidavit all were also considered. See pages 388 – 394 of the record.

As aptly postulated by the 1st – 3rd Respondents’ learned counsel (page 8), the striking out of the alleged offending paragraphs of the affidavit in question has not occasioned a miscarriage of justice (to the Appellant) in view of the fact that the Court below nonetheless deemed it expedient to consider the whole paragraphs of the affidavit and Further Affidavit together with all the exhibits attached thereto before dismissing the Appellant’s application in question. See pages 388 – 394 of the record.

The Court below made a specific finding thus:
“I have since found out that no part of the offensive further affidavit contradicts or controverts that vital point made in the counter

affidavit and that, thus Court will rely and believe the uncontroverted depositions of the 1st – 3rd Respondents as representing the truth that the Appellant was not kept beyond the period allowed in law when he was invited by the 1st – 3rd Respondents.

See pages 403 – 408 of the record.

In regard to whether or not Exhibits M – M10 were public documents, the Court below made a far-reaching finding at page 381 lines 10 – 14 of the record:
In the light of the above, this Court is eminently placed in a position to suo muto (sic) discountenance the entire exhibits M – M10 just struck out even if they do not qualify as public documents because they are not made in the language of the Court.

Interestingly, Exhibit A2 attached to the 1st – 3rd Respondents’ counter affidavit (pages 116 – 117 of the record) was a petition against Kinsey College of Education, Ilorin, Kwara State. Exhibit A2 written to the Inspector General of Police by one Alhaji Raji Shefiru Olugbogi of Ilorin, Kwara State, thereby alleging Kinsey College of Education to be awarding illegal and fake Degree Certificates.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The 1st – 3rd Respondents acted upon Exhibit A2 forwarded thereto by the IGP for investigation. Curiously, however, Exhibit A2 was duly investigated to be false and malicious. Investigation revealed that Kinsey College of Education, Ilorin in question did not award any Degree certificate but rather National Certificate of Education (NCE) with the approval of the National Commission for College of Education and Kwara State Ministry of Education.

It was in the course of investigation of Exhibit A2, that the Respondents discovered that the Appellant was the author thereof. Further investigation revealed that the Appellant (allegedly) operated other fake schools and awarded fake Degree and NYSC certificates (pages 92 – 230 of the record). Thus, resulting in the arrest and prosecution of the Appellant before the Magistrate’s Court in question.

Most interestingly, at page 13 (paragraph 4.19) of the Appellant’s brief, it’s been insinuated upon that though Exhibit U was never struck out, yet the Court below failed to make use of it in its decision. Thus, according to the learned counsel:
“The failure of the lower Court to

make use of the Exhibit ‘U’ has occasioned a miscarriage of justice against the appellant in favour of the Respondents. The learned trial Judge erred in law when the lower Court failed to evaluate properly at all the evidence presented by the appellant in this case and has occasioned a miscarriage of justice against the appellant.

Contrariwise, however, as aptly argued by the 1st – 3rd Respondents, the Court below did not pick and choose the evidence it used in the instant case. Exhibit U was duly considered alongside the other Exhibits attached to the affidavits of the respective parties. The said Exhibit U was duly evaluated by the Court below in the course of the vexed judgment.

Instructively, the said Exhibit U was among the 25 Exhibits attached to the further affidavit of 88 paragraphs, namely Exhibits M – M10, N, N1, P1, Q1, Q2, R, S, T, U, V, W, W1, and W2, respectively appraised by the court below. At page 388 lines 10 – 13 of the record, the Court below stated:
“And in the interest of justice not minding the offensive depositions in the 88 paragraphs further affidavit, all were also

considered”

Thus, there is every unassailable reason for me to hold that the facts deposed to in paragraphs 7, 8, 9, 13, 52.71, 84 and 88 of the Appellant further Affidavit and Exhibit 4 attached vis-à-vis the 1st – 3rd Respondents’ counter affidavit and the exhibits attached thereto were properly evaluated by the Court below.

In the circumstance, the first Issue ought to be, and same is hereby answered in the negative and accordingly resolved against the Appellant.

ISSUE NO. 2
The second issue raises the vexed question of whether the Appellant is entitled to compensation (damages) for the breach of fundamental rights thereof. The second issue is distilled from ground 2 of the Notice of Appeal.

Instructively, the vexed judgment of the Court below is to the conclusive effect:
In the peculiar and general circumstances of the case the Appellant failed to prove that the Respondents violated his fundamental rights, thus the case is without merit. I cannot grant the reliefs sought by the Applicant and the verdict I will return convincingly is that of dismissal of the case in its entirety. I make no order

as to cost.

Undoubtedly, it is so crystally obvious from the pleadings, evidence on record and the trite fundamental principles, that having grossly failed to prove the claims for breach of fundamental rights thereof on preponderance of evidence, the Appellant ought not to be entitled to any damages or compensation whatsoever. This trite fundamental proposition has been reiterated in a plethora of formidable authorities by the Apex Court and the Court of Appeal alike. In the case ofUNITED CEMENT COMPANY NIGERIA LIMITED VS. ISIDOR (2016) ALL FWLR (Pt. 844) 2123, this Court aptly reiterated the trite principle:
“Indeed, it is a fundamental principle, that in any claim for damages, a plaintiff must succeed in establishing the claim vis-a-vis the relief thereof. Thus, where a plaintiff woefully fails to prove the claim thereof with some credible evidence, the relief for damages must naturally fail: IITA VS. AMRANI (1994) 3 NWLR (Pt. 332) 296 @ 325 Paragraph C – D.” Per Saulawa, JCA @ 2154.

In the circumstance, the second issue equally ought to be, and same is hereby answered in the negative, and resolved against the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Hence, against the backdrop of resolving both the issues against the Appellants, the appeal resultantly fails and it is hereby dismissed by me.

Consequently, the judgment of the High Court of Kwara State holden at Ilorin, delivered on May 9, 2018 in Suit No. KWS/59M/2017 by A. S. Oyinloye, J.; is hereby affirmed.

There shall be no order in regard to costs.

Before placing the very last dot to this judgment, I have deemed it expedient to reiterate the trite principle, that just as the Appellant is imbued with the right to ensure that his fundamental rights are not breached or trampled upon by virtue of Section 36 of the 1999 Constitution as amended, so also he has corresponding civic duties and obligations provided under Section 24(1) (a) – (f) of the same Constitution.

IBRAHIM SHATA BDLIYA, J.C.A.: I agree

BALKISU BELLO ALIYU, J.C.A.: I agree

Appearances:

OLUSOLA OLORUNFEMI ESQ. For Appellant(s)

TIMOTHY ADEREMI AJIBOLA ESQ. FOR THE 1ST – 3RD RESPONDENTS.

KOLAWOLE LUQMAN ZAKARIYAH ESQ. FOR THE 4TH RESPONDENT. For Respondent(s)